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Court Overturns Current Lead-Paint Law

In the wake of the state Court of Appeals' unanimous decision on July 1 to strike
down the city's lead-paint law, there is much celebrating by advocates for the
health of New York City's children (especially its children of color and disadvantaged
background) and tenant and environmental groups.

"It's a victory for the children of this city," said City Councilmember
Bill Perkins, who introduced a new, more
stringent lead-paint bill to the Council
more than a year ago, only to have it languish without a hearing until only
nine days before the Court of Appeal's decision. "The law was a law that
was ineffective. The court's ruling is also good because it means we have overcome
the hurdles to
focus on our bill, which will effectively address the city's lead-poisoning
issues."

It has long been known that lead is toxic and can cause retardation and a
variety of other lifelong impairments, especially in young children. In its
1991 report "Preventing
Lead Poisoning In Young Children," for example, the U.S. Centers for Disease
Control and Prevention noted that even very low levels of blood lead in children
have been linked to diminished intelligence, decreased stature or growth, and
loss of hearing. (Children are especially vulnerable because of their small
size, the fact that they are still developing mentally and physically, and
their tendency
to use their hands and mouths on available surfaces and to eat things adults
would avoid.)

As Gotham Gazette wrote in an Issue
of the Week,
when a divided City Council passed the 1999 lead-paint law, known as Local
Law 38, it replaced a 1982 lead-paint law that required that all lead paint
be removed
from the city's older buildings. Landlords complained that that 1982 law had
been onerous and unrealistic.

The Court of Appeals has now ruled that when the City Council passed Local Law
38, it violated state environmental law by failing to adequately study or explain
the new law's environmental or public-health impact.

With Local Law 38 struck down, the city reverts to the 1982 law. The Court
of Appeals, however, found that that law, while much more comprehensive than
its
replacement, also "is not a viable or realistic approach to protecting the
city's population, particularly its young children, from lead exposure." The
court therefore urged the various interest groups – landlord groups, tenant
advocates, the current mayoral administration – to negotiate in good
faith, and urged the City Council to develop a new lead-paint law without delay.
Perkins agrees. " Every day of delay is a day when children are being poisoned," he
said.

He acknowledges, however, that a fight still lies ahead to get his stricter
bill passed, and in a form that retains teeth. "To me, this is a marathon --
the last three miles are the toughest," he said. "The landlords can
be relentless in avoiding their responsibility. Our biggest problem will be
that there may be others who may try to recast this bill to turn it back into
Local
Law 38 in another guise.

" We realize we have to fight even harder now. This victory is not a
reason to relax and stop fighting."

The Bloomberg administration has opposed the bill Perkins is championing,
known as Local Law 101A. Michael A. Cardozo, Corporation Counsel for the city,
issued a statement about the court's ruling that said, in part, "We are
disappointed by [the] court's decision. The city felt that Local Law 38 provided
a comprehensive,
safe, workable approach to the control of lead-based paint hazards.... In
our view, the court's decision gave inadequate weight to the council's extensive
consideration of potential environmental impacts."

"
That said, the City Council must now act promptly to rectify the situation," he
wrote.

Opponents of the change in the law point to the fact that for years there has
been a sharp and steady decline in the number of the city's children identified
as having elevated lead levels.

The city's Department of Health and Mental Hygiene, which tracks new cases of
elevated lead levels in children, had in fact issued a press release on June
11 that headlined a 79 percent reduction in new cases from 1995 to 2002, when
there were 3,985 new cases reported.

"Four thousand new cases last year is nothing to brag about," Perkins
countered.

Interestingly, the department press release was subtitled, "Parents with
Small Children Should Insist that Landlords Fix Peeling Paint, It's the Law" – highlighting
the fact that Local Law 38 put the onus squarely on parents to know their
rights under the law, know about and recognize lead-paint hazards to their
young children,
report violations in writing to their landlords, and make sure the landlords
addressed the problem properly. It also limited tenants' ability to sue their
landlords.

The new bill before the council, among other increases in stringency, shifts
the burden of inspecting for lead-paint hazards from the tenant to the landlord,
imposes penalties on landlords for noncompliance (according to the New York
City Coalition to End Lead Poisoning, Local Law 38 provided "no penalties whatsoever
for noncompliance"), includes lead dust (a known hazard to small children)
among the problems that landlords must inspect for and correct, lowers the
age of protected children from 6 to 5, and applies to day-care centers and
schools
as well as homes.

According to the city health department’s 2001 report on lead poisoning
in the city, nearly 95 percent of children identified as suffering from lead
poisoning were black, Hispanic, or Asian. "There is a stubborn tendency
for children of color to be the ones who are affected," said Perkins.

The 3,985 new cases in 2002 also followed a well-established
pattern of occurring disproportionately in poor neighborhoods, such as low-income
pockets of the Bronx, Harlem, Queens, and areas like East New York and Flatbush
in Brooklyn.

"The constituency that is most victimized is the least politically powerful," said
Perkins, who represents parts of Harlem, Morningside Heights, and the Upper
West Side.
"That's why the council has to be the champion of the victims of lead poisoning.
We failed at that in 1999, but I think we now have a chance to redeem ourselves.

"We need a transitional plan, so says the court. Well, we've put together
an alternative law and had it before the council for a year. So we're way ahead
of the game.
Now, we need to start immediately to meet with the mayor, landlord bodies,
and other members of the council, and to get this thing moving."

Some of the bill's supporters, who now include 37 of the City Council's 51 members,
have accused Council Speaker Gifford Miller of stalling the progress of 101A,
which he does not support.

"The support of the Speaker would obviously be very helpful at this point," Perkins
said. "He needs to stop dragging his feet, to say the least."

In covering the Court of Appeals decision, the New York Daily News reported that
Miller received $35,950 in campaign contributions from real-estate groups. Miller
told the News that the money had not influenced his stance on the bill.

Sue Wilson is a journalist who writes frequently on health and science topics for such outlets as the New York Times, WNET, and UNICEF.

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